Shailender Singh and others vs State of M.P.

Ashok Kumar Tiwari, J.

Shri I.B. Singh, Learned Counsel for applicants.

Shri G.S. Chouhan, learned Government Advocate for respondent.

With the consent of the parties, this revision petition was heard finally.

This revision has been filed against the order dated 8-1-2005 passed by learned 4th Additional Sessions Judge, Indore, in Session Trial No. 427/2004. By the impugned order, learned trial Court has directed that charge under sections 306 and 498-A of Indian Penal Code be framed against the accused applicants.

From the perusal of the copies of the challan papers filed by the applicants, it is found that there is evidence to the effect that applicants used to tease and assault the deceased and the deceased was driven out from their house by them and two months prior to the date of incident i.e. the commitment of suicide. According to the prosecution, applicant Shailendra, the husband of the deceased, went to the parental house of the deceased on 15-7-2004 to bring deceased Sunita with him. There is evidence to the effect that he asked deceased Sunita to apologize his mother and sister Guddibai. He also told her that in case she does not beg apology from them, he will not take her to her marital house with him. It is said that due to this, deceased Sunita took celphos tablets which caused her death.

It has been held in number of cases repeatedly by this Court and by Hon''ble Apex Court that in order to bring home the charge u/s 306 of Indian Penal Code, the ingredients of abetment as defined in section 107 of Indian Penal Code should be made out. A person is said to abet the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aid, by any act or illegal omission, the doing of that thing.

The evidence as discussed above which is sought to be produced by the prosecution against the applicants does not disclose any of the ingredients of abetment. Asking deceased to apologize her mother-in-law and sister-in-law cannot by any stretch of imagination be equated to the abetment of suicide.

The only evidence against the applicant is that they used to harass and assault the deceased. There is no evidence to the effect that harassment was made for any demand of dowry. Therefore, any presumption u/s 304B of Indian Penal Code cannot be raised against the applicants. There is also no evidence that applicants subjected the deceased to cruelty. For the purpose of section 498-A of Indian Penal Code ''cruelty'' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman ; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.

It is thus clear that every assault or harassment does not amount to cruelty. There is not an iota of evidence to the effect that applicant or any of them have assaulted or harassed the deceased in such a manner and to such extent that she could likely be driven to commit suicide or cause grave injury or danger to life, limb or health (whether mental or physical).

Learned Counsel for the non-applicant has submitted that the suicide has been committed within seven years of marriage of the deceased; therefore, it will be presumed that the applicants abetted the commission of suicide. This contention does not deserve to be accepted. According to section 113-A of Indian Evidence Act, presumption is available not only when commission of suicide is committed within a period of seven years from the date of marriage of the woman committing suicide, but prosecution is also required to prove that the deceased was subjected to cruelty by her husband or relative of her husband. The fact that the suicide was committed within seven years of marriage alone is not sufficient to enable any Court to presume that suicide had been abetted by her husband or by any relative of her husband.

According to the explanation attached to section 113-A of Indian Evidence Act "cruelty" for the purpose of this section shall have the same meaning as in section 498A of the Indian Penal Code. As it is evident from what has been stated above, that there is no material to presume that the applicant subjected the deceased to cruelty. In such a situation, the presumption u/s 113-A of Indian Evidence Act is also not available against the accused.

From the above discussion, it is clear that even if the entire prosecution evidence is taken for granted, it will not be possible to hold the applicants guilty u/s 306 or 498-A of Indian Penal Code of any other offence is also not made out on the basis of prosecution evidence. Presumption u/s 304B of Indian Penal Code and that u/s 113-A of Indian Evidence Act can also not be invoked in the facts and circumstances of the case. In such a situation, the trial of the applicants may be of futile exercise.

Consequently, this revision is allowed. The impugned order of framing of charge under sections 306 and 498-A of Indian Penal Code against the applicants is set aside and they are directed to be discharged.

As the revision has been finally decided, no need to pass any order on I. A. No. 241/2005 for stay. Hence, it is disposed of.